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As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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1.16:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.16. It differs from the
Model Rule in that MR 1.16(b)(4) allows a lawyer to withdraw from representation
if "the client insists on taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement." KRPC 1.16(b)(3) allows a lawyer to withdraw if "[t]he client insists upon pursuing an objective that the lawyer considers repugnant
or imprudent." In addition, MR 1.16(c) contains the following sentence which is not in the
Kentucky rule: "A lawyer must comply with applicable law requiring notice to or permission of
a tribunal when terminating a representation." Also, the Kentucky rule does not contain the last sentence of MR 1.16(d): "The lawyer may retain papers relating to the client to the extent permitted by
other law."

1.16:102 Model Code Comparison

With regard to KRPC 1.16(a), DR 2-109(A) provided that a lawyer "shall not accept employment . . . if he knows or it is obvious that [the prospective
client] wishes to . . . [b]ring a legal action . . . or otherwise have steps
taken for him, merely for the purpose of harassing or maliciously injuring any
person . . . ." Nor may a lawyer accept employment if the lawyer is aware that the prospective
client wishes to "[p]resent a claim or defense . . . that is not warranted under existing law,
unless it can be supported by good faith argument for an extension, modification,
or reversal of existing law." DR 2-110(B) provided that a lawyer "shall withdraw from employment . . . if:

" (1) He knows or it is obvious that his client is bringing the legal action . . .
or is otherwise having steps taken for him, merely for the purpose of harassing
or maliciously injuring any person.

" (2) He knows or it is obvious that his continued employment will result in violation
of a Disciplinary Rule.

" (3) His mental or physical condition renders it unreasonably difficult for him to
carry out the employment effectively.

" (4) He is discharged by his client."

With regard to KRPC 1.16(b), DR 2-110(C) permitted withdrawal regardless of the
effect on the client if:

" (1) His client: (a) insists upon presenting a claim or defense that is not warranted
under existing law and cannot be supported by good faith argument for an extension,
modification, or reversal of existing law; (b) personally seeks to pursue an
illegal course of conduct; (c) insists that the lawyer pursue a course of conduct
that is illegal or that is prohibited under the Disciplinary Rules; (d) by other
conduct renders it unreasonably difficult for the lawyer to carry out his employment
effectively; (e) insists, in a matter not pending before a tribunal, that the
lawyer engage in conduct that is contrary to the judgment and advice of the
lawyer but not prohibited under the Disciplinary Rules; (f) deliberately disregards
an agreement or obligation to the lawyer as to expenses and fees.

" (2) His continued employment is likely to result in a violation of a Disciplinary
Rule.

" (3) His inability to work with co-counsel indicates that the best interest of the
client likely will be served by withdrawal.

" (4) His mental or physical condition renders it difficult for him to carry out the
employment effectively.

" (5) His client knowingly and freely assents to termination of his employment.

" (6) He believes in good faith, in a proceeding pending before a tribunal, that the
tribunal will find the existence of other good cause for withdrawal."

With regard to KRPC 1.16(c), DR 2-110(A)(1) provided: "If permission for withdrawal from employment is required by the rules of a tribunal,
the lawyer shall not withdraw . . . without its permission."

The provisions of KRPC 1.16(d) are substantially identical to DR 2-110(A)(2)
and (3){DR 2-110(A)(3)}.

KRPC 1.16(a) provides that except when ordered by a tribunal to continue services, a lawyer
shall not represent a client, or where representation has commenced, shall withdraw
from the representation of a client if the lawyer is discharged by the client,
suffers from incapacity, or is tempted to perform unlawful conduct.

1.16:210 Discharge by Client

A client has a right to discharge a lawyer at any time, with or without cause,
subject to liability for payment for the lawyer&'s services. KRPC 1.16, Comment [4]. A lawyer should discontinue service once the lawyer is discharged. KRPC 1.16(a)(3). However, if the client is mentally incompetent, the client may lack the legal
capacity to discharge the lawyer, or may not realize that the discharge would
be seriously adverse to the client&'s interests. Rule 1.16, Comment [6]. In this situation, the lawyer should make special effort to help the client
consider the consequences and, in an extreme case, may initiate proceedings
for a conservatorship or similar protection of the client. KRPC 1.16, Comment [6]. See also [Client Under a Disability, supra at, 1.14]

1.16:220 Incapacity of Lawyer

A lawyer should choose not to represent a client, or should discontinue service,
if the lawyer&'s physical or mental condition materially impairs the lawyer&'s ability to represent the client. KRPC 1.16(a)(2). For example, in Kentucky Bar Ass&'n v. Zimmerman, 69 S.W.3d 465 (Ky. 2001), an attorney was permanently disbarred after committing various misconduct in
six client matters, including continuing to represent clients while suspended.

1.16:230 Withdrawal to Avoid Unlawful Conduct

A lawyer should choose not to represent a client, or should discontinue service
if the representation will result in violation of the Rules of Professional
Conduct or other law. KRPC 1.16(a)(1). However, an attorney is not always automatically required to withdraw from
representation when criminal allegations are made against a client. SeeKentucky Bar Ass&'n v. Twehues, 849 S.W.2d 549 (Ky. 1993) (a county attorney representing a client in a private divorce matter was not
automatically required to withdraw from representation when criminal allegations
of child abuse were made against his client). If a technical violation of ethical rules is unintentional and without motive
to gain improper advantage or unethical benefit, the failure to withdraw will
not be grounds for disciplinary action. Kentucky Bar Ass&'n v. Twehues, 849 S.W.2d 549 (Ky. 1993).

1.16:240 Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

The provisions of KRPC 1.16 do not specifically address the lawyer&'s responsibilitiy or right of withdrawal if his or her client is pursuing legal
action for the purpose of harassing or maliciously injuring a person, but Comment [7] allows the lawyer to withdraw from representation where the client insists on
a repugnant or imprudent objective.

1.16:310 Withdrawal to Undertake Adverse Representation

Except when ordered by a tribunal to continue services, a lawyer may withdraw
from representing a client if withdrawal can be accomplished without material
adverse effect on the interests of the client. KRPC 1.16(b). The lawyer is responsible for informing the client of his or her desire to withdraw. Leadingham v. Kentucky Bar Ass&'n, 44 S.W.3d 374 (Ky. 2001); Kentucky Bar Ass&'n v. Bazzell, 936 S.W.2d 769 (Ky. 1997).

1.16:320 Circumstances Justifying Discretionary Withdrawal

Except when ordered by a tribunal to continue services, a lawyer may withdraw
from representing a client if: (1) the client persists in a course of action
involving the lawyer&'s services that the lawyer reasonably believes is criminal or fraudulent; (2)
the client has used the lawyer&'s services to perpetrate a crime or fraud; (3) the client insists upon pursuing
an objective that the lawyer considers repugnant or imprudent; (4) the client
fails substantially to fulfill an obligation to the lawyer regarding the lawyer&'s services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled; (5) the representation will result in an
unreasonable financial burden on the lawyer or has been rendered unreasonably
difficult by the client; or (6)some other good cause for withdrawal exists. KRPC 1.16(b)(1)-(6). A lawyer may not withdraw services or refuse to prepare if he has not received
a fee by the first day of trial. KBA E-134 (1976).

KRPC 1.16(c) provides that when ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation. In some case
lawyers must request permission to withdraw. In Kentucky Bar Ass&'n v. Megibow, 957 S.W.2d 727 (Ky. 1997), an attorney was publicly reprimanded for withdrawing from a case before filing
a motion to withdraw or receiving an order permitting his withdrawal.

Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment
of successor counsel is unjustified, thus requiring the client to represent
himself. KRPC 1.16, Comment [5].

KRPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps
to the extent reasonably practicable to protect a client&'s interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, and surrendering papers and property to which the
client is entitled. See James v. Kentucky Bar Ass&'n, 41 S.W.3d 850 (Ky. 2001). Even if the lawyer has been unfairly discharged by the client, a lawyer must
take all reasonable steps to mitigate the consequences to the client. KRPC 1.16, Comment [9]. In this situation, the lawyer may retain papers as security for a fee only to
the extent permitted by law. KRPC 1.16, Comment [9]. Whether or not a lawyer for an organization may have an obligation to the organization after
withdrawing or being discharged is beyond the scope of these Rules. KRPC 1.16, Comment [10].

1.16:610 Termination of Lawyer&'s Authority [see 1.2:270]

KRPC 1.16(d) directs the lawyer to refund any advance payment of fee that has not been earned
when the lawyer&'s representation is terminated. A lawyer also may not retain a client&'s file because of a fee dispute. Rather, upon termination of the representation, the lawyer must turn over the
file to the client or to the client&'s new attorney, with the exception of the attorney&'s work product. Although a lawyer may charge a reasonable fee for the duplication of the documents
in the file, a lawyer does not have a statutory lien for the costs of the duplication
and should surrender the file even if reimbursement for copying is not forthcoming. KBA E-395 (1997).